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Friday March 29, 2024

IHC decides with ‘heavy heart’: Kh Asif can never hold public office

By Faisal Kamal Pasha
April 27, 2018

By News desk

ISLAMABAD: The Islamabad High Court (IHC) on Thursday disqualified Foreign Minister Khawaja Asif from holding public office under Article 62(1)(f), the same article of the Constitution that formed basis for the disqualification of Nawaz Sharif on July 28, 2017.

As already decided by the Supreme Court, the disqualification will be for life. Interestingly, PTI Chairman Imran Khan a couple of days back had claimed that a big wicket was going to dislodge.

A three-member larger bench headed by Justice Athar Minallah with Justice Aamer Farooq and Justice Mohsin Akhtar Kayani its members had reserved the judgment in a petition filed by PTI leader from Sialkot Usman Dar on April 10.

The IHC bench, besides deciding the legal issue, also criticised the political parties in its 35-page judgment filing political cases before the courts that not only waste time of the genuine litigants but also make the courts disputed.

Disqualifying Asif for concealing his Abu Dhabi employment and bank account in the National Bank of Abu Dhabi, the bench said he was a full-time employee in a foreign-based company while he was holding the portfolios of defence and finance minister. “The conflict of interest is obvious and, therefore, this alone is sufficient to declare him disqualified as he has also violated oath of his office,” the court said.

“We declare that the Respondent (Khawaja Asif) was not qualified to contest the General Election of 2013 from NA-110 as he did not fulfil the conditions described under Article 62(1)(f) of the Constitution, read with Section 99(1)(f) of the Act of 1976. The petition is, therefore, allowed. The Registrar of this Court is directed to send certified copy of this judgment to the Election Commission for de-notifying the Respondent as Member of the National Assembly of Pakistan. A copy is also directed to be sent to the Speaker of National Assembly of Pakistan for information.”

Rashdeen Nawaz Kasuri, the counsel for Asif, had argued before the court that omission to mention a dormant bank account was inconsequential and the nondisclosure would not attract the test of strict liability. The IHC bench, however, observed that the jurisprudence expounded by the august Supreme Court in the recent judgments appeared to have elaborated the standard of the test required to be applied while examining a nondisclosure in the context of Article 62(1)(f) of the Constitution.

In this respect, the IHC bench cited the Supreme Court judgments in the cases of Imran Khan vs Nawaz Sharif and Hanif Abbasi vs Jehangir Khan Tareen.

Asif had admitted his employment in Abu Dhabi and had produced a letter from his employer, according to which, he was a legal adviser for the company. As per letter, he was not a full-time employee and the company could contact him via telephone or during his scheduled visit of Abu Dhabi whenever required for his services.

The company’s MD, Elias Salloum, while expressing his willingness to come and depose before any court in Pakistan, had said the employment contract was executed just to fulfil legal requirements of the UAE laws.

Commenting on this statement, the IHC bench said, “Asif, by taking this stance, has further complicated matters for himself. In other words, he has taken a stance which tantamount to acknowledging that he had executed a false contract with the intent of deceiving the laws of another sovereign State. This stance unfortunately has been taken by a person who has had the privilege of being elected many times as member of the Parliament.”

As per letter, Asif was management consultant for the company but the IHC noted that in the list of employees, the employee mentioned before him was a concrete mason, while the one after him was a shovel operator driver.

The IHC bench noted that Asif had executed, from time-to-time, three separate employment contracts with International Mechanical and Electrical Co (W.L.L). First employment contract was executed by Asif on June 8, 2011 that remained valid till June 30, 2013 for a total salary of 9000 UAE dirhams. The second was executed on July 1, 2013 and remained valid till May 30, 2017 for a total salary of 30,000 UAE dirhams. Third contract was executed in May 2017 that remained valid till filing of petition in the IHC.

In third contract, Asif was receiving 50,000 UAE dirhams on account of salary as management consultant. On the basis of employment contract, Asif was issued residence visa ‘Iqama’ and a labour card.

The IHC said Asif in his 2013 nomination papers showed him a businessman but he never disclosed his salary received from the job.

“It is obvious from the facts and circumstances in the instant case that Asif had deliberately and wilfully not disclosed his status as an employee of the Company, nor receiving of the salary per month pursuant thereto, despite having been expressly put to challenge by the other contesting candidates. The validity of ‘Iqama’, working as an employee of the company and receiving a substantial salary without being physically present, which is AED 50,000/- per month under the third contract executed in July 2017, were some benefits gained from non disclosure. Disclosure would have led to giving up the ‘Iqama’ and the hefty salary paid by the company for some advice sought telephonically by a foreign based employer from the prospective Defence and then Foreign Minister of Pakistan.”

“We have deeply pondered but could not persuade ourselves that this deliberate and wilful non disclosure was a bona fide or honest omission,” the judgment read.

It reads that previously Asif had declared his occupation as ‘business’ and it was for the first time in the present proceedings that he had taken the plea that foreign remittances declared in the nomination form included income from salary as well as from the business of a restaurant.

The judgment says Asif did not declared in his nomination papers, the details of bank accounts he maintained with National Bank of Abu Dhabi. The said account was declared by the Asif for the first time in 2015 before the ECP in the annual statement of assets and liabilities under Section 42-A of Representation of People Act (ROPA).

Asif in his reply on November 24, 2017 had said that the petitioner concealed facts from the IHC bench that the Supreme Court already dismissed his petition.

Commenting about this, the IHC larger bench said when Supreme Court had dismissed the petition filed by Dar, the said facts were not part of it and according to the petitioner, these came to his knowledge much later.

The petitioner’s counsel, Sikandar Bashir Mohmand, had argued that Asif may be declared disqualified as he concealed material facts regarding his UAE salary and source of foreign remittances. Asif also did not disclose his sources for establishment of a restaurant in UAE, Dar’s counsel said.

Regarding foreign remittances, Asif had made a statement before the LHC election tribunal that he received the money from the sale of a restaurant. His counsel had argued that no reliable evidence was produced by the petitioner to show that Asif was engaged in working on full time basis in the UAE.

He added that the question whether a strict liability test would be attracted in the case of nondisclosure was recently argued before the Supreme Court in Sheikh Rashid’s case wherein the judgment had been reserved. It would be appropriate to keep the matter at hand pending till the Supreme Court announces judgment in the said case, he added. The IHC bench referred to a Supreme Court judgment where the apex court had upheld the disqualification of a returned candidate because he had obtained two national identity cards prior to the introduction of computerised ones (CNICs).

The IHC bench in its judgment also criticised the political forces which utilise judicial forums to settle their scores.